Donning & Doffing

""Postliminary"? WTF? Labor law sure does have some weird terms."

I think 'postliminary' snuck its way into my MS Word custom dictionary. Which really bothers me. It's a big old abstract, ugly pseudo-latin term that deserves death by ridicule. But if anybody wrote, say, 'tasks done before or after the main workday,' the phrase wouldn't be intelligible to lawyers, because it wouldn't track the language of the statute ('activities which are preliminary to or postliminary to said principal activity or activities.') Freaking legalese.

Heh. I snuck de minimus into my comment explaining things on Kevin Drum's page.

To be honest, I don't mind use of legal jargon when it serves a useful purpose, as here. It's a term of art where one word substitutes for a bunch. Another example: Habeus Corpus. It's easier to say "Petitioner filed a writ of Habeus Corpus" than it is to say "Petitioner filed a writ alledging that he was improperly imprisoned." On the other hand, legal jargon's annoying when it's just a fancy way of saying something you can say just as easily in plain english. For example: "In the instant case," instead of "In this case," or, even better, "Here."

Yeah, I like de minimus (and habeas corpus, res ipsa loquitur, et cetera et cetera). They do unique work, they sound cool, and in any case they were swallowed up whole by the old common law as specific doctrines.

But "'preliminary' or 'postliminary'" strikes me as an arbitrary phrase chosen by some Congressional staffer because the words sound, well, symmetrical. Sure, they make sense (and they're more useful than mere throat-clearing verbiage), but it's a pain to write them out a couple dozen times in a document. I find it curious, and a little annoying, that 'before' and 'after' don't strike people -- myself included -- as 'legal'.

Seems postliminary has entered the general English lexicon, but not very successfully. And when it first came from the latin, it was as an incorrect adjective (al?) form of 'postliminium' (rights of soldiers after a war), rather than as a counterpart to 'preliminary'. Which suggests that 'postliminary' doesn't make a lot of intuitive sense to native English speakers, for whatever reason. Though I wonder if it's used in other legal contexts.

http://dictionary.oed.com/cgi/entry/50185065?single=1&query_type=word&queryword=postliminary&first=1&max_to_show=10

Anyway. Looks like the Court upheld the de minimus exception (I think ...). Which is fine, okay -- administrability, fairness, whatever. But I agree, the whole 'non-compensation for waiting in line' aspect of the decision seems bizarre. If workers are required to pick up or buy gear from the company store, it seems hard to say the wait isn't 'integral and indispensable' to the main activities. Why not rule that it's compensable, and give companies an incentive to speed up the system? Especially since you've got the de minimus broom handy to sweep up odd things like waiting for paychecks or drinking coffee. I'd like to see the facts in this case.

My understanding of the court's ruling is that the "Work Day" is said to begin with the start of your Primary Work Activity. It ends with the last Primary Work Activity. Steiner held that donning and doffing were both "integral and indispensable" to the primary work activity, and therefore compensable. The Ninth Circuit in Alvarez said that workers should be compensated for all the time from the start of work, that is, from the moment you don, to the end of work, when you doff, and thus time travelling should be included. The Supreme Court apparently agreed. The First Circuit very closely applied the Portal-to-Portal Act and, frankly, I think they have it right. Much as I love poultry workers and want them to be compensated, it seems like the law was pretty plainly written to prevent people from being compensated for time spent travelling to where the job starts after arriving at work. But the Supreme Court didn't say that.

And I really do think that, if you want the outcome that's best for workers regardless of the law, I'd much rather have line-waiting compensable than walking to the killing floor compensable. The Court said that waiting for equipment is basically two steps removed from Primary Work Activity (It's Activity waiting to engage in Activity that is integral and indispensable to the primary work activity) and that it would be a stretch to force companies to compensate for that.

True, but at the same time, this is murky interpretive territory. I think Steiner was a clear-cut case: if the workers didn't change their clothes, they'd die gruesome deaths. And even there, the time required for showering was a key factor in determining 'integral and indispensable'. Since Steiner, courts have analogized that safety gear in meat packing plants is also 'integral and indispensable.' Which is less easy to argue, I think, but obviously a plausible reading. I'm just not convinced that it's good to draw bright line rules between the times when workers don gear and when they wait to collect it, when the courts have been expanding the range of compensable activities over the last half-century. If donning certain gear is an 'integral' activity, then shouldn't obtaining that gear be, as well, especially if the company sets up a system where workers are forced to wait?

(I'm using the facts from the fictional 'Dyson' memo, where the workers wait in line ten to fifteen minutes each morning. But I'm curious to see if the actual Barber plant was any different -- I don't think Stevens goes into much detail. But it doesn't seem like the kind of waiting implied by his description is the same as that at the Dyson plant.)

So my point is that the determination of 'integral and indispensable' is a question of fact. And although obtaining gear isn't necessarily an 'integral action' (eg, if it's not performed every day), in certain contexts it should be. Perhaps if the courts count some gear as 'integral', they should count all tasks taken to obtain that gear to be integral, as well: then you can distinguish between 'integral' gear and non-'integral' gear without splitting hairs about whether the task is one or two steps removed from the 'productive activity' (Stevens' term for "hacking at meat" -- showing how all this parsing of rules multiplies the number of arbitrary categories.) So that a chicken worker is compensated for the time spent obtaining his smock -- an 'integral' piece of gear -- but, say, a janitor isn't compensated for retrieving his jumpsuit from the plant cleaners.

In the end, though, you're right -- it's pretty difficult to obtain the best outcome for the workers within the case law as it stands. Maybe a revision to the Portal-to-Portal Act. It would certainly end these ludicrous quibbles (how can these lawsuits have been economical for anybody?). But my brain's a little too addled at the moment to ad lib a clear standard that would require a fair pay scheme and be administrable in many different industries.